Gay Couples May Want to File a Protective Tax Refund Claim

The recent decision by a federal appeals court regarding the Defense of Marriage Act suggests gay couples may want to file something known as a protective refund claim with the Internal Revenue Service in the event the Supreme Court overturns the law, according to accounting experts.

The Court of Appeals for the Second Circuit in New York struck down the law’s definition of marriage as a union between a man and a woman as unconstitutional. The decision was the second by a federal appeals court striking down DOMA, as the law is known. The law’s constitutionality is expected eventually to be considered by the United States Supreme Court.

If the high court invalidates DOMA, legally married same-sex couples will be able to file claims for refunds of federal tax overpayments, said Janis Cowhey McDonagh, a partner at Marcum LLP in New York and a specialist in the firm’s national LGBT and non-traditional family practice.

Currently, same-sex marriage is recognized by six states — New York, Connecticut, Iowa, Massachusetts, New Hampshire, Vermont — and the District of Columbia. In addition, roughly 18,000 same-sex couples were married in California between June 16 and Nov. 4 of 2008, when voters passed Proposition 8, which approved a constitutional amendment restricting marriage to one man and one woman. Those marriages are valid.

Patricia Cain, a law professor at Santa Clara University and an authority on legal issues faced by same-sex couples, said others might want to consider filing a protective claim, too.

For instance, she noted that an additional nine states, as well as Washington, D.C., recognize “marriage equivalent statuses” for same-sex couples, like domestic partnerships or civil unions. While most people presume those relationships aren’t marriages, she said in an e-mail, “there’s a good argument that absent DOMA such relationships should be treated as marriages for tax purposes.”

In light of such uncertainty, she said, some details may end up being settled by further litigation. “I actually would advise anyone who would benefit from joint filing to file an amended return as a protective claim for refund if they are married (no matter where they live) or in a marriage equivalent status.”

Ms. McDonagh said couples should file a protective refund claim now because there is a three-year statute of limitations on tax refund claims. By filing a claim now, couples will have standing for overpayments dating to 2009, while DOMA wends its way through the court system. The claim applies to income taxes, estate taxes as well as gift taxes, she said.

It’s possible, Ms. McDonagh said, that if the Supreme Court voids the law, the I.R.S. could waive the three-year statute of limitations. That would seem the fair thing to do, she said, but there isn’t any precedent for the agency doing so. So to be safe, filing a protective claim makes sense.

Couples should consult their accountants for advice about filing a protective claim, which essentially involves filing an amended tax return, she said.

The case decided earlier this month was brought on behalf of Edith Windsor of New York City, who married her longtime partner, Thea Clara Spyer, in 2007 in Canada. When Ms. Spyer died in 2009, Ms. Windsor inherited her property. Because the I.R.S. was not allowed, under the Defense of Marriage Act, to consider her as a surviving spouse, she faced a tax bill of $363,053 that she would not have had to pay if the marriage had been recognized.

Do you intend to file a protective claim?

A version of this article appears in print on 11/03/2012, on page B4 of the NewYork edition with the headline: Gay Couples’
Tax Planning.

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